On 16 March 2021, the Home Office updated Appendix D (record keeping requirements) of its Sponsor Guidance to include details of what documents employers must retain for job adverts where a resident labour market test is not required. This will apply to all vacancies advertised by employers since 1 December 2020.
Why should employers care about this update? Failure to comply with any sponsor duties, including record keeping, could result in an employer’s sponsor licence being downgraded, suspended or revoked. This can cause disruption, additional costs and damage the employer’s reputation if its sponsored migrants have to leave the UK as a result.
From the Home Office’s perspective, they wish to ensure that vacancies are genuine and require employers to be able to explain and provide evidence of how they recruited the worker. The newly added Section 2B in Appendix D sets out the evidence employers must keep, or information they must provide, where no formal resident labour market test was required.
In summary, an employer must retain the following if they advertised the role:
- Details of any advertisements placed including a screenshot, printout or photocopy of the advert, or a record of the text of the advert and information about where the job advertised (e.g. website address) and for how long;
- A record of the number of applicants and the number of shortlisted individuals for interview or other stages of the recruitment process;
- At least one other item of evidence or information evidencing the process used by the employer to identify the most suitable candidate. The guidance provides examples such as a copy or summary of the interview notes for the successful candidate, a list of common interview questions used for candidates, brief notes on why the successful candidate was selected and why others were rejected and information about any scoring or grading process the employer used to identify the successful candidate.
If the employer did not advertise the role, the employer must be prepared to be able to explain (and where possible provide evidence) of how they identified the worker as suitable for the role. The guidance sets out examples such as the worker was already legally working for the employer on another immigration route and they were established as suitable for the role through their previous performance or the worker made a speculative application and the employer was content (through interview and/or checking references or qualifications) that they had the necessary skills and experience to do the role.
Broken record alert? It seems not - these new record keeping requirements for vacancies post 1 December 2020 are certainty less burdensome on employers than the requirements for those vacancies that did require a formal resident labour market test. The updated guidance is also very clear as to what particular types of document or information should be retained, which alleviates the need for employers to interpret or assume what the Home Office wants to see. Employers should seek to integrate good record keeping into standard HR processes and ensure adequate HR systems are in place for maintaining and accessing such records should the Home Office come knocking on the door.
If you did not advertise the role, you must be able to explain how you recruited the worker. This information will help [the Home Office] establish, where necessary, that the role is a genuine vacancy.